COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69545 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : JOSEPH FINCHER : : Defendant-Appellant : : DATE OF ANNOUNCEMENT MAY 30, 1996 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-323453 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender MARK MAHONEY, ESQ. ARTHUR A. ELKINS, ESQ. Assistant Prosecuting Attorney Assistant Public Defender 8th Floor Justice Center SCOTT ROGER HURLEY, ESQ. 1200 Ontario Street Assistant Public Defender Cleveland, Ohio 44113 100 Lakeside Place 1200 W. Third Street Cleveland, Ohio 44113 -2- PATRICIA ANN BLACKMON, J.: Joseph Fincher, defendant-appellant, appeals a decision from the trial court convicting him of drug abuse. Fincher assigns the following two errors for our review: I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW WHEN HE WAS CONVICTED OF DRUG ABUSE, AS A THIRD DEGREE FELONY, WITHOUT A SPECIAL FINDING BY THE JURY THAT HE HAD A PRIOR DRUG ABUSE CONVICTION. II. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST APPELLANT WHEN THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the trial court. The apposite facts follow. On April 8, 1995, Cleveland police responded to a call about suspected drug activity in the area of East 89th and Capitol. Three cars were dispatched to the scene. Officers in the first two cars went directly to the location while the officers in the third car went to an adjacent street to intercept anyone who might flee. When no one approached the third car, Detective Ronald Timm drove over to the location where the other two cars had stopped. Timm saw the other officers exit their cars and approach five males. Timm and another detective, Franklin Lake, saw one of the males, Joseph Fincher, reach into his pocket and then attempt to push an object under a cast on his right arm. Timm and Lake yelled at Fincher to stop and he complied. Thereafter, Fincher held a four inch glass vial out to the officers and said he would have thrown it down but he didn't want to look guilty. Fincher was arrested. -3- Tests revealed the glass vial contained cocaine residue. Fincher was charged with drug abuse. The charge included a furthermore clause specifying Fincher had previously been convicted of attempted drug abuse on July 18, 1991. At trial, two police officers testified they saw Fincher attempt to hide something in the cast on his arm. Fincher presented testimony from Evelyn Wilson about extensive drug activity in the neighborhood. Wilson testified youths regularly used her yard as an escape route when police arrived and often dropped drug paraphernalia as they ran. According to Wilson, she regularly paid Fincher to clean up her yard and Fincher was cleaning up the yard on the day he was arrested. Fincher testified he found the pipe while cleaning up Wilson's yard and was about to throw it away when police approached. He said he did not try to hide the pipe, but told police about it and voluntarily gave it to them. Fincher was found guilty of drug abuse and sentenced to two years in prison. The trial court suspended the sentence, placed Fincher on eighteen months probation and ordered him to seek drug treatment. This appeal followed. In his first assignment of error, Fincher asserts the trial court erred in convicting him of drug abuse as a third degree felony without a special jury finding of a prior drug abuse conviction. Under R.C. 2925.11(C)(1), drug abuse is a third degree felony if the offender has been previously convicted of drug abuse. In this case, the information included a furthermore clause that Fincher had been convicted of the crime of attempted drug abuse on -4- or about July 18, 1991. Fincher argues the trial court erred in sentencing him for a third degree felony absent a specific jury finding of a previous drug abuse conviction. A prior conviction that elevates the degree of a subsequent offense is an essential element of the subsequent offense and must be proven beyond a reasonable doubt. State v. Allen (1987), 29 Ohio St.3d 53, 54; State v. Ireson (1991), 72 Ohio App.3d 235, 237. In its jury instructions, the court properly explained the jury's responsibility with respect to the prior conviction. You also have to find that he was previously convicted of drug abuse, actually attempted drug abuse, but the fact of that prior conviction is stipulated to so that's an easy conclusion to reach because that's given to you, but in fact you will have to before you can find him guilty, you have to find essentially two things. Beyond a reasonable doubt that on or about April 8, 1995 in this county, the defendant knowingly obtained, possessed or used cocaine in less than the bulk amount. Number two, had the prior conviction but again No. 2, the prior conviction is stipulated. As submitted to the jury, the verdict form read as follows: We the jury in this case being duly impaneled and sworn do find the defendant, Joseph Fincher [guilty or not guilty] of drug abuse (knowingly obtaining, possessing or using a controlled substance, to wit: Cocaine, a Schedule II drug being less than the bulk amount) in violation of 2925.11 of the Ohio Revised Code as charged in the information. The transcript reveals Fincher stipulated to the prior conviction. THE COURT: Before I call for the defendant's next witness, I'm reminded that we should formally enter the stipulation to the jury, so the stipulation as -5- I understand it is that both sides to this case, the State of Ohio and the defendant, Joseph Fincher, stipulate that the allegation in the indictment to the effect that this defendant, Mr. Fincher, was on July 18, 1991 convicted of the crime of attempted drug abuse in violation of the Ohio statutes in criminal Case No. 264569, that that is true and the State need introduce no evidence. Correct stipulation? MS. TYLEE: Yes, your honor. MR. MAHONEY: Yes, your honor. (Tr. 245) "Parties are bound as to all matters of fact and law concerned in their stipulations." State v. Folk (1991), 74 Ohio App.3d 468, 471. See also State v. Post (1987), 32 Ohio St.3d 380, 393 (Stipulations made by the accused, or by the accused's counsel in his presence, during the course of a criminal trial are binding and enforceable.) Through the stipulation made on the record, Fincher admitted to the prior conviction. We reject Fincher's argument that the jury failed to make a finding as to the prior conviction. According to the form completed by the jury, Fincher was found guilty of drug abuse "as charged in the information." The information included a furthermore clause that Fincher had been convicted of the crime of attempted drug abuse on or about July 18, 1991. In light of the wording of the information, the verdict form and the trial court's instructions to the jury, the jury's verdict included a finding that Fincher had previously been convicted of attempted drug abuse. Fincher's first assignment of error is without merit. -6- Fincher next argues his conviction was against the manifest weight of the evidence. "A verdict will not be reversed as against the manifest weight of the evidence unless the court, after reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, finds that the jury clearly lost its way in resolving the conflicts in the evidence and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." State v. Martin (1983), 20 Ohio App.3d 172, 175. State v. Garrow (1995), 103 Ohio App.3d 368, 370-371. In this case, the state presented evidence that Fincher was in possession of a glass pipe containing cocaine residue. Fincher admitted he knew what the pipe was and what it was used for. Although he denied trying to hide the pipe, two police officers saw Fincher attempt to hide the pipe under a cast he was wearing on his arm. The state's evidence established Fincher knowingly possessed the cocaine residue found in the pipe. Under the circumstances, we find the jury's verdict did not create a manifest miscarriage of justice. Accordingly, we overrule Fincher's second assignment of error. Judgment affirmed. -7- It is ordered that Appellee recover of Appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KARPINSKI, J., and PATTON, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- .